The Unlawyer

The Philippine blogosphere’s blog du jour happens to be a site published by Australian Brian Gorrell, where he tells a long tale of how his former Filipino lover allegedly bilked him of USD 70,000. Ordinarily, such a blog would probably raise just a few eyebrows, but the personalities Mr. Gorrell mentions in his blog happen to be prominent members of the junior set of Manila’s high society. in the course of his blog, Mr. Gorrell liberally describes the many subjects of his ire – his ex-boyfriend and some of their common friends – in decidedly unflattering terms.

At the same time, his many fans have piled on by posting many wild, nasty, and lurid comments not only against those whom Mr. Gorrell is venting his spleen on, but also against individuals whom he had nothing to say.

All Manila is, of course, waiting whether or not those being tormented by Mr. Gorrell will file suit in court, to be more specific a criminal case for libel either in his home country or the Philippines.

Let’s focus on what Philppine libel law is. Article 353 of he Revised Penal Code defines libel as a:

“… public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

The next clause, Article 354, lays down a legal presumption, an exception to that legal right that a person is deemed innocent until proven guilty beyond a reasonable doubt:

“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown…”

In short, unless the remarks penned by the accused fall under the exceptions enumerated in Article 354, then he has the burden, and an imperative one at that, of proving that his allegations are indeed true and that his words were published “with good motives and for justifiable ends.” Failing to do that, the court will have no choice but to convict him of the crime, which carries with it a penalty consisting of imprisonment of prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

[Ed's note: Prision correccional is one of several Spanish-language terms used by the Revised Penal Code - it was originally enacted in Spanish by the way - to describe terms of imprisonment, and usually ranges in length from six months to six years imprisonment. In this particular case, a person convicted of libel may be sentenced to anywhere from six months and one day to four years and two months in the hoosegow per count. An accused may be convicted of as many counts of libel as he may be guilty of but is liable to serve only a maximum of twelve years and six months in jail]

Do the subjects of Mr. Gorrell’s blog, or to be more precise, those individuals who he described in an insulting manner, have a cause of action against him? Certainly. His writings almost certainly comply with the essential elements of libel as defined by Philippine law:

“To be liable for libel, the following elements must be shown to exist: (1) the allegation of a discreditable act or condition concerning another; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice.”

The twist is, of course, Mr. Gorrell is now residing outside of Philippine territory and has crafted – and continues to craft – his startling revelations in the comfort of his home Down Under. The question is: can Philippine prosecutors successfully indict him for the crime of libel?

Ironically enough, they may take some insights from a case decided in, of all places, the High Court of Australia, Dow Jones v. Gutnick, summarized thus [Many thanks to the Philippine e-Legal Forum for the link - Ed.]:

“The case arose when Australian businessman Joseph Gutnick sued Dow Jones & Co. Inc. for statements made about him in an article published in Barron’s Online. Gutnick, who lives in Victoria, Australia, filed suit in the Supreme Court of Victoria. Dow Jones subsequently argued that the court had no jurisdiction since the article in question was published on Dow Jones servers located in the United States.

“The High Court of Australia — which is equivalent to the U.S. Supreme Court — concurred with lower court rulings and denied Dow’s request to dismiss the case. The court found that since the damage to Gutnick’s reputation occurred in Victoria where Dow Jones’ article was downloaded and read, it was appropriate for Gutnick to seek tort damages there.”

At the heart of the matter is the very nature of the World Wide Web itself. While Mr. Gorrell may have uploaded his articles to a web server located outside of Philippine jurisdiction, or even Australian jurisdiction for that matter, they can only make sense to the ordinary reader if they are downloaded to a web browser together with such formatting instructions, and where all the elements of Mr. Gorrell’s blog are assembled and made intelligible. In the Dow Jones v. Gutnick case, publication only occurred when “… the article was displayed on the subscribers’ computer screens and it was only then that the publication was in a form which conveyed the defamatory words to the subscribers in Australia who downloaded the article.”

In this particular case, all the complainants have to demonstrate to the investigating prosecutor the existence of probable cause is to obtain Internet access during preliminary investigation, via a wireless connection perhaps, launch a web browser and point it to Mr. Gorrell’s blog.

While I believe that Mr. Gorrell may be successfully indicted for libel, can Philippine courts exercise jurisdiction over him? I’ll answer this question in my next entry.